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Summary of Decisions - August 13 – August 17, 2012

August 17, 2012 - 8:58am

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Personnel Security (10 CFR Part 710)

On August 20, 2012, an OHA Hearing Officer issued a decision in which he concluded that anindividual’s security clearance should not be restored. A Local Security Office suspended theindividual’s security clearance because the individual drank to intoxication once a week and hadbeen diagnosed as suffering from Alcohol Disorder, Not Otherwise Specified, which raisedsecurity concerns under Criteria H and J. After conducting a hearing and evaluating thedocumentary and testimonial evidence, the Hearing Officer found that the individual had notpresented sufficient evidence to resolve these security concerns. Specifically, he found that theindividual’s continued use of alcohol, in particular, his consumption of up to five drinks a day,did not resolve the security concerns about his judgment and reliability and his ability to protectclassified information. OHA Case No. PSH-12-0048 (William M. Schwartz, H.O.)

Freedom of Information Act

On August 15, 2012, the Office of Hearings and Appeals (OHA) issued a decision granting in partan appeal from a Freedom of Information Act (FOIA) determination issued by the Department ofEnergy’s Bonneville Power Administration (BPA). The Idaho Conservation League (Appellant)submitted a FOIA request to BPA seeking the Project file for the Albeni Falls Dam Flexible WinterOperations Environmental Assessment. In a Determination Letter, BPA issued a response to theAppellant’s FOIA request, releasing 17 documents in their entirety, releasing one partially redacteddocument, withholding two documents as non-responsive, withholding 25 documents in theirentirety under Exemptions 5 and 6 and providing a list of the electronic file names of the 25documents which were withheld in full. The Appellant appealed the determination, asserting that (1)BPA failed to justify the withholding of deliberative documents under Exemption 5; (2) BPA failedto justify any withholdings under Exemption 6; (3) BPA failed to state why discretionary release ofthe 25 withheld documents is not appropriate; and (4) BPA failed to determine whether non-exemptinformation could be segregated from the 25 withheld documents. After examining the documentswithheld by BPA, the Office of Hearings and Appeals (OHA) concluded that BPA’s determinationletter was inadequate to permit the Appellant to file an informed appeal. Consequently, OHAremanded the matter to BPA to issue another determination which will inform the Appellant whichdocuments are being withheld pursuant to Exemptions 5 and 6 and will adequately explain howExemptions 5 and 6 apply to the withheld documents. On remand, BPA must also consider whatnon-exempt, factual material may be segregated and released on remand and provide a publicinterest analysis with respect to documents withheld pursuant to Exemption 5. OHA Case No.FIA-12-0040

On August 17, 2012, the Office of Hearings and Appeals (OHA) issued a decision denying anappeal from a Freedom of Information Act (FOIA) determination issued by Department ofEnergy’s (DOE) Office of Health, Safety and Security (HSS). In March 2012, Cynthia Brownfiled a request for records regarding her late mother. In a July 2012 determination, the DOE’sOffice of Health, Safety and Security (HSS) issued a determination in response to Ms. Brown’srequest. In that determination, HSS reported the results of searches it had conducted 1) atRichland Operations Office and 2) of Human Radiation Experiments records, with the assistanceof the Office of Legacy Management. Based on information provided to OHA, we find that HSSperformed a search reasonably calculated to reveal records responsive to Ms. Brown’s FOIArequest. HSS collaborated with knowledgeable officials to ascertain where responsivedocuments might exist and had searches made of those locations. In that regard, we found thatDOE personnel made inquiries beyond what the FOIA requires of them in searching forresponsive documents. Accordingly, we found that the search was adequate for purposes of theFOIA and the Appeal was denied. OHA Case No. FIA-12-0044